Case No. 3:07-cv-08164-DGC Grand Canyon Trust v. U.S. Bureau of Reclamation December 7 2007

• Description: Case No. 3:07-cv-08164-DGC Grand Canyon Trust v. U.S. Bureau of Reclamation December 7 2007
• State: CO
• Date: 12/7/2007
• Title: Case No. 3:07-cv-08164-DGC Grand Canyon Trust v. U.S. Bureau of Reclamation December 7 2007
• Water Supply Pro - Doc Type: Court Documents

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the Colorado River.
STANDARD OF REVIEW
A motion for summary judgment must be granted when "there is no genuine issue as
to any material fact and ... the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247 -48 (1986). Courts
review an agency's failure to take actions required by the ESA and NEPA under the
Administrative Procedure Act's standards of review. Western Watersheds Project v.
Mate'ko, 468 F.3d 1099, 1107 (9th Cir. 2006) (ESA citizen suit claims); Pit River Tribe v.
U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006) (NEPA claims). Upon finding an
agency fails to comply with mandatory ESA and NEPA duties, "[t]he reviewing court shall
... compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. §
706(1). Further, agency actions "not in accordance with law" must be set aside. 5 U.S.C.
§ 706(2)(A); High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 640 (9th Cir. 2004).
ARGUMENT
1. RECLAMA11UNa DA1V1 UYh1cAI WIN 3 UIVllrlt 1vivLil'."
FLUCTUATING FLOWS" VIOLATE THE ENDANGERED SPECIES ACT
Plaintiff is entitled to summary judgment on its first three claims for relief 11
Through its MLFF operations of Glen Canyon Dam, Reclamation is violating (1) the ESA
section 7 mandate to avoid jeopardizing species, (2) the ESA section 7 mandate to avoid
destroying or adversely modifying critical habitat, and (3) the ESA section 9 prohibition
against the taking of listed species. FWS makes this clear in the 1994 Biological Opinion,
which concluded that operating Glen Canyon Dam under a Modified Low Fluctuating Flow
regime violates the ESA. MLFF operations, according to FWS, eliminate the required
habitat conditions and features necessary for the chub's survival and recovery in the
Colorado River and the Grand Canyon and is taking humpback chub. To avoid jeopardy,
adverse modification, and taking in violation of the ESA, Reclamation must comply with
the Biological Opinion's RPA IA -- Seasonally Adjusted Steady Flows. The best available
The declarations of Richard Johnson and Nikolai Lash have been submitted
concurrently with this Motion and demonstrate Plaintiffs standing in this case.
Memorandum in Support of Pls.' 13
Motion for Summary Judgment
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the Colorado River.
STANDARD OF REVIEW
A motion for summary judgment must be granted when "there is no genuine issue as
to any material fact and ... the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247 -48 (1986). Courts
review an agency's failure to take actions required by the ESA and NEPA under the
Administrative Procedure Act's standards of review. Western Watersheds Project v.
Mate'ko, 468 F.3d 1099, 1107 (9th Cir. 2006) (ESA citizen suit claims); Pit River Tribe v.
U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006) (NEPA claims). Upon finding an
agency fails to comply with mandatory ESA and NEPA duties, "[t]he reviewing court shall
... compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. §
706(1). Further, agency actions "not in accordance with law" must be set aside. 5 U.S.C.
§ 706(2)(A); High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 640 (9th Cir. 2004).
ARGUMENT
1. RECLAMA11UNa DA1V1 UYh1cAI WIN 3 UIVllrlt 1vivLil'."
FLUCTUATING FLOWS" VIOLATE THE ENDANGERED SPECIES ACT
Plaintiff is entitled to summary judgment on its first three claims for relief 11
Through its MLFF operations of Glen Canyon Dam, Reclamation is violating (1) the ESA
section 7 mandate to avoid jeopardizing species, (2) the ESA section 7 mandate to avoid
destroying or adversely modifying critical habitat, and (3) the ESA section 9 prohibition
against the taking of listed species. FWS makes this clear in the 1994 Biological Opinion,
which concluded that operating Glen Canyon Dam under a Modified Low Fluctuating Flow
regime violates the ESA. MLFF operations, according to FWS, eliminate the required
habitat conditions and features necessary for the chub's survival and recovery in the
Colorado River and the Grand Canyon and is taking humpback chub. To avoid jeopardy,
adverse modification, and taking in violation of the ESA, Reclamation must comply with
the Biological Opinion's RPA IA -- Seasonally Adjusted Steady Flows. The best available
The declarations of Richard Johnson and Nikolai Lash have been submitted
concurrently with this Motion and demonstrate Plaintiffs standing in this case.
Memorandum in Support of Pls.' 13
Motion for Summary Judgment
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r27
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1
the Colorado River.
STANDARD OF REVIEW
A motion for summary judgment must be granted when "there is no genuine issue as
to any material fact and ... the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247 -48 (1986). Courts
review an agency's failure to take actions required by the ESA and NEPA under the
Administrative Procedure Act's standards of review. Western Watersheds Project v.
Mate'ko, 468 F.3d 1099, 1107 (9th Cir. 2006) (ESA citizen suit claims); Pit River Tribe v.
U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006) (NEPA claims). Upon finding an
agency fails to comply with mandatory ESA and NEPA duties, "[t]he reviewing court shall
... compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. §
706(1). Further, agency actions "not in accordance with law" must be set aside. 5 U.S.C.
§ 706(2)(A); High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 640 (9th Cir. 2004).
ARGUMENT
1. RECLAMA11UNa DA1V1 UYh1cAI WIN 3 UIVllrlt 1vivLil'."
FLUCTUATING FLOWS" VIOLATE THE ENDANGERED SPECIES ACT
Plaintiff is entitled to summary judgment on its first three claims for relief 11
Through its MLFF operations of Glen Canyon Dam, Reclamation is violating (1) the ESA
section 7 mandate to avoid jeopardizing species, (2) the ESA section 7 mandate to avoid
destroying or adversely modifying critical habitat, and (3) the ESA section 9 prohibition
against the taking of listed species. FWS makes this clear in the 1994 Biological Opinion,
which concluded that operating Glen Canyon Dam under a Modified Low Fluctuating Flow
regime violates the ESA. MLFF operations, according to FWS, eliminate the required
habitat conditions and features necessary for the chub's survival and recovery in the
Colorado River and the Grand Canyon and is taking humpback chub. To avoid jeopardy,
adverse modification, and taking in violation of the ESA, Reclamation must comply with
the Biological Opinion's RPA IA -- Seasonally Adjusted Steady Flows. The best available
The declarations of Richard Johnson and Nikolai Lash have been submitted
concurrently with this Motion and demonstrate Plaintiffs standing in this case.
Memorandum in Support of Pls.' 13
Motion for Summary Judgment